Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-15
nnmmi..inn OF ANNALS.

TYLER, TEX, Nov. 10 Josiah Watson
vs. Miller Bros; appeal from Bell. Suit
by eppellees against appellant as princi
pal and E. w. Bush as endorser, to re-
cover balance on note given for land
and also to foreclose vendors lien. Sew
eral parties to whom appellant had sold
portions Of the land were made parties for
the purposes of foreclosure. On the day
of trisl appelIees dismissed as to all the
defendants except Watson, and took judg-
ment by default with foreclosure of lien,
appellant having flied no answer, but his
co defendants, however, had done so. II
also appears that before the trial the petit
ton was lost, ant on motion WAS substl-
tuted. Fifteen days after judgment ap
pellant appeared and flied sworn state
ment to set aside the Judgment on
the ground that to the best
of his recollection he had never been
served with citation in the case, and
charging that he had no notice OF the sub.
stituted petition; that he had never en-
ployed any one to represent him; that If
he had been served with notice Of the
substitution of the petition he would have
appeared and answered.; that the note
sued on had been obtained by eppellees
been paid in full under arrangements
with the former holders. Held: Is is
shown that Judgment was rendered On 8
substituted petition, and that appellant
had no notice of the same as required by
the statute. Not to give notice was error
whether appellant was injured or not.
Reversed and remsuded. Maltbie, P. J.
Missouri Pacific Railway vs.. J. T. Bart
1n&A Toll Ct1if hr1n all
TO recover of appellant the value of thirty
five bales Of cotton placed upon sppel-
lsnt's platform and alleged to have been
burned by appellants locomotive through
negligence. The trial judge gave in sub
stance the following charge: That if
they found from the evidence that plaint-
IFS cotton was destroyed by fire from de-
fendsnt's engine, then the burden of
proof was on the railroad company to
show that there was in part no negligence
on its part to cause the fire. This is as
signed IS error. Held: A correct charge
when the plaintiff himself has not been
guilty Of negligence in exposing
his property to destr uction
But If there be an issue upon the evidence
as to contributory negligence of the own
er, the burden OF proof would not be upon
UclcHuaut uutli Tue pldlutIN is e2OHcI6EeU
from the negligence BY the jury. In the
case at bar the charge is given without
restrictions, and in that we find reversi-
BILE error. When the burden Of proof is
thrown upon defendant, it would be re-
lieved from such onus by its showing 1t
had used all precautions known and ap.
proved for the prevention Of injury by
fires. For error in charge the Judgment
cannot stand. Reversed and remanded.
Collard, j.
The Abilene Building and Loan Asso-
citation VS.. T. j. and S. j. Finnie; appeal
from Taylor. The statute provided that
the word "person" includes corpora
ton, and the right to mechanics lien is
given to any person or nrm, etc. fR S.,
3I64l. This settles the question whether
appellant had the right to acquire and
contract for mechanics lien. [65, Tex,
33l] The mere declaration OF q party at
the time of purchase that the land Is in
tended as homestead, will not make 1t so.
A lot or lots contiguous to one or more,
on which the residence is situated, espec-
ially when used for purposes inconsistent
with the uses of home for the family or
place Of business for the head of the family,